Background
Damian Borg appealed Penrith City Council’s refusal of DA25/0702 for demolition of existing structures and construction of a new single-storey dwelling at 33–39 Howell Road, Londonderry. The proposal included a driveway, onsite sewage system, asset protection zone for bushfire purposes, and removal of 112 trees and other vegetation.
The site contains Castlereagh Scribbly Gum Woodland, a vulnerable ecological community under the Biodiversity Conservation Act 2016 (NSW). Mr Borg contended that flooding, saturated land, groundwater concerns, topography and the proposed effluent management area required the dwelling to be placed on the vegetated upper part of the site. He proposed compensatory planting under a vegetation management plan.
The Court’s Holding
Commissioner Washington dismissed the Class 1 appeal and refused the development application. The Court held that the evidence did not establish that the asserted hydrogeological and engineering constraints required the selected building location or made lower-impact alternatives unfeasible. The applicant’s hydrogeological material was principally desktop-based and did not adequately map or substantiate the claimed constraints.
Although the proposal did not trigger the Biodiversity Offsets Scheme and was not likely to significantly affect threatened species or ecological communities for the purposes of Part 7 of the Biodiversity Conservation Act, that did not end the planning assessment. Under s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW), the proposed removal of 112 trees from the vulnerable woodland was inadequately justified and contrary to Penrith DCP controls favouring retention and siting development on cleared land where possible. Replacement planting could not adequately substitute for the mature vegetation and its biodiversity values.
Key Takeaways
- Meeting biodiversity-assessment thresholds does not remove the need to assess vegetation impacts under the general planning merits provisions.
- An applicant relying on site constraints to justify native-vegetation clearing must substantiate those constraints with sufficiently detailed evidence.
- Compensatory planting may not justify avoidable removal of mature trees in a vulnerable ecological community.
Why It Matters
The decision underscores that ecological impacts remain central to development-merits appeals even where no biodiversity offset scheme entry or biodiversity development assessment report is required. Planning controls that prefer avoidance and retention can carry decisive weight where an applicant has not shown that a lower-impact siting or design is unfeasible.
For projects on constrained rural land, the case highlights the importance of integrating verified hydrological, engineering and ecological analysis early in the design process, rather than treating vegetation retention as an issue to be addressed primarily through replacement planting.